Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burka v. Sessions

United States Court of Appeals, Eighth Circuit

August 14, 2018

Barite Koshe Burka Petitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States Respondent

          Submitted: June 15, 2018

         Petition for Review of an Order of the Board of Immigration Appeals

          Before KELLY, ARNOLD, and STRAS, Circuit Judges.

          STRAS, CIRCUIT JUDGE.

         Barite Koshe Burka challenges the denial of her untimely application for asylum. Because we lack jurisdiction to review the BIA's determination that Burka did not establish an excuse for her late filing based on changed circumstances, we dismiss her petition for review.

         I.

         Burka is a sixty-three-year-old woman who fears persecution by the Ethiopian government because of her involvement in a local women's group and her husband's status as a political dissident. She arrived in the United States on a temporary visa in 2008, but her husband remained in Ethiopia, where he spent much of his time in hiding. Burka eventually lost all contact with him.

         In 2012, the Department of Homeland Security issued Burka a Notice to Appear in removal proceedings. After conceding removability, Burka applied for asylum, withholding of removal, and relief under the Convention Against Torture. The government asked the immigration judge to deny asylum under 8 U.S.C. § 1158(a)(2)(B), which required Burka to file her application "within 1 year after [she] arriv[ed] in the United States," a deadline she indisputably missed. Burka responded that her husband's disappearance excused her late filing because it was a "changed circumstance[] which materially affect[ed her] eligibility for asylum." See id. § 1158(a)(2)(D).

         The immigration judge denied Burka's asylum application under the one-year statute of limitations but granted withholding of removal. In denying asylum, the immigration judge reasoned that "[Burka], her brother, and her husband had all been detained and harmed by the government in the past" and that her husband "was already trying to hide from the government when [she] left Ethiopia. Thus, [Burka] did not have new fears that might constitute a change in circumstances, but rather her existing fears worsened." The immigration judge then concluded, "[t]herefore, these fears do not constitute a change in [Burka's] circumstance[s] that would legally excuse her filing delay."

         In dismissing Burka's appeal, the Board of Immigration Appeals (the "BIA") relied on the immigration judge's findings that Burka had "experienced past persecution in Ethiopia, her husband and brother were also harmed, and she was not prevented from filing an asylum application within 1 year of her entry into the United States." We review the BIA's decision as the relevant final agency action, but because "the BIA adopted the findings [and] reasoning of the [immigration judge], we also review the [immigration judge's] decision." Matul-Hernandez v. Holder, 685 F.3d 707, 710-11 (8th Cir. 2012) (citation omitted).

         II.

         This case is about our appellate jurisdiction over asylum cases. The Immigration and Nationality Act provides that "[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)," which contains, as relevant here, the one-year statute of limitations for asylum applications and its exceptions, including the one for changed circumstances on which Burka relies. 8 U.S.C. § 1158(a)(3). The categorical language of this provision notwithstanding, we may still review "constitutional claims or questions of law raised upon a petition for review." Id. § 1252(a)(2)(D). The issue, then, is whether this case presents a reviewable constitutional claim or question of law or, alternatively, whether Burka asks us to overturn a discretionary determination, something that is beyond our jurisdiction to do.

         The answer to the jurisdictional question depends on what the immigration judge and the BIA actually decided. The immigration judge found that Burka feared persecution long before her husband disappeared, because "she, her brother, and her husband had all been detained and harmed by the government in the past" and her husband "was already trying to hide from the government when [she] left Ethiopia." The BIA relied on these findings in dismissing Burka's appeal. Though neither of these decisions is a model of clarity, we understand them to be saying that Burka already had strong preexisting fears of persecution based on the government's ongoing harassment of her husband. The disappearance of her husband, though undoubtedly distressing, was just another incident in a pattern of events that had already caused her to fear persecution, too similar to what she had already experienced to be a material change in circumstances, which is what was required to "legally excuse her filing delay."

         A materiality determination of this type is unreviewable under 8 U.S.C. § 1158(a)(3). See Goromou v. Holder, 721 F.3d 569, 579-80 (8th Cir. 2013). Indeed, in Cambara-Cambara v. Lynch, we held that we lacked jurisdiction to review a similar changed-circumstances argument based on an attack on the applicants' father. 837 F.3d 822, 825 (8th Cir. 2016). In our view, the applicants' argument that the attack "provided further evidence of the type of persecution [they] already suffered" amounted to nothing more than a "quarrel with the BIA's discretionary factual ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.